H. OF L.] statute the obligations and duties in respect of roads), is absolute, that they must keep in repair the roads in their parish. Can anything be more clear than this, that the obligation is absolute in the first instance on the proper body whoever it be? Over and over again it has been decided that where a person is bound ratione tenure to repair a main road, and becomes insolvent, the obligation immediately falls upon the parish, and that the parish, or the authority whatever it is, is bound to take upon itself the repair. You cannot, for reasons of public policy which are obvious enough, allow the roads to get out of repair. The obligation has always been held to be absolute and everlasting, and you cannot get rid of it except by statute. Then the proposition appears to be this, that if you take a main road (not merely the via trita, but that part of it which is said to be dedicated to the public), your jurisdiction must be limited to, and does not go an inch beyond that which is the highway. If that be so, if you want to cut a gutter to prevent the road from being flooded, or to take a culvert under it, where is your culvert to start? Have you no jurisdiction to dig a hole to allow the water to go through the culvert, so as to preserve the road? The truth is that you might put forward half a dozen hypotheses to show that such a construction of the law would reduce the whole thing to an absurdity, and render the administration of the road authority absolutely impossible. I have no hesitation in saying that, assuming a thing to be necessary for the preservation of the road, and assuming that the local authority is under obligation to keep up the road, the law of England is that you shall keep up that road by whatever means are appropriate and necessary to do it. Of course I do not omit to notice the cases where the road itself has been destroyed, but as Blackburn, J. said in one of the cases quoted to us, it is always a question of much or little; it is not because a part of the road is washed away that the road is destroyed. In the case to which his Lordship applied those observations the whole road was for a considerable distance overlaid with earth which had fallen from a hill, but the line of the road was ascertainable, and it was said, and it appears to me obviously good sense, that whenever you are dealing with any general proposition you may bring it so near to the line as to make it an absurdity. In that particular case he thought that the obligation upon the parish was not got rid of, although it would involve considerable work to remove the obstruction, which for the moment had destroyed the passage way along the road (Reg. v. Greenhow (ubi sup.). The question which arose with respect to the groynes appears to be susceptible of the same answer. The arbitrator has found that these groynes are necessary for the maintenance of the road, and, as it appears to me, quite rightly. Then the proposition is this: You cannot do anything of this sort to maintain the road; you must allow it to go out of repair every year, although that would involve extraordinary and unnecessary expense to the parish or local body, whatever it might be; you must do that because your only power is to repair the road. In that argument I think that the word "maintenance" appears to have escaped the attention of those so arguing: the "maintenance" of the road is quite as much a part of the duty as


[H. OF L. the "repair." Therefore, it appears to me that it follows the same line of thought, and that the award is perfectly good. As regards the determinations of the arbitrator so far as questions of fact are concerned, we have no power to criticise them. The one question of law which, as it appears to me, is really open upon this award, is the question about the annual contribution. It appears to me to have been sufficiently answered in the course of the discussion here. It is suggested that, though the contribution is not perhaps intended to be a fixed sum, still that you must take it over an average of years. That might or might not have been a very good way to arrive at it. I do not say the contrary, but my answer is, that there is no foundation for it in the statute. The statute reasonably read seems to me to provide that it is to be a reasonable sum de anno in annum in each of these cases to be determined each year. I can see good reasons why the Legislature should have so enacted, but I am content with saying that, whatever the reasons were, the Legislature has so enacted; and it appears to me, therefore, that it is the only rule which can be applied to this case. Under these circumstances, it appears to me that the original judgment of the Queen's Bench Division was right, and that the judgment of the Court of Appeal ought to be reversed. I cannot help saying further that, if any such question as it was sought to raise here by mixing up the facts that have been found with the law, was open to the court, there would be an end to arbitrations altogether. It has been the policy of our law to treat awards as final and conclusive between the parties. There are familiar grounds known to every lawyer upon which an award can be impeached, but the remarkable thing in this case is that no such question is raised, and it seems to me that if your Lordships were to give the least countenance to such a proceeding as this, it would be fatal, not only to the law of arbitration generally, but certainly, having regard to the complex questions which civil engineers have to deal with in these matters, it would render it absolutely hopeless to determine questions of this sort between a local authority and a county council. For these reasons I move your Lordships that the judgment of the court below be reversed.

Lord WATSON.-My Lords: I agree with the Lord Chancellor in thinking that the single question of law raised in the argument in this appeal relates to the accounting between the two parties, raising the question whether the actual sum is to be ascertained annually having regard to the outlay of the urban authority, the sum expended by the urban authority, or is it to consist of a more or less definite sum which is to be payable from year to year, irrespective, apparently, of the cost to which the local authority may have been put in that year. Upon the rest of the case I concur generally in all the observations that have been made by the Lord Chancellor, and it is matter of great regret that the courts have been solicited to entertain a great number of questions with which they have nothing whatever to do. Those questions are as much barred by the decision of the arbitrator on points of fact as if he had been a separate tribunal of equal jurisdiction with the court itself. It was said that a question of law is involved. There is no such question. There would have been one if the law had been in the

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condition assumed by the respondents, that no part of a high road could ever be used for purposes of recreation. The use of the esplanade for any jus spatiandi or purposes of amusement is in no way inconsistent with its being a part of the road. The matter of amount of valuation assessed by the arbitrator is as much within his exclusive jurisdiction as the other questions of fact.

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Lord SHAND.-My Lords: I have also come to the conclusion that the judgment of the Court of Appeal cannot be sustained. Upon the important question that has been argued before us the judg ment of that court proceeds on the view that what is called the esplanade was in point of fact a promenade made for a pleasure walk or lounge for the benefit of Sandgate, its inhabitants, and those who are interested in promoting its welfare, and that it was not a path made as part of the public road. The conclusion to which the Court of Appeal came upon that subject is admitted to be sound so far as regards one part of this road, but I think that their judgment as to the other part cannot be sustained, because the arbitrator has expressly said that the footway or esplanade which intervenes between the sea wall and the carriage-way was and is part of the road," and again he says, "the sea wall, whether part of the road or not, was, previous to its destruction by the sea, in extent and circumstance such that its destruction involved the destruction of some part of the road;" and "the erection of this wall was necessary for the protection of the road." It appears to me that these findings by the arbitrator upon this matter of fact dispose of the view that this esplanade was a mere pleasure ground and not a path forming part of the road, and therefore that the judgment of the Court of Appeal cannot be affirmed. [His Lordship proceeded to criticise the form of the award and special case, and expressed an opinion that it should have been remitted to the arbitrator to be restated, and continued :] At the same time I am not prepared to say, upon a critical examination of such loose statements by the arbitrator as we have here, that I differ from your Lordships who have preceded me in regard to the motion which has been made. With regard to the other question, I mean as to the clause of the statute which provides for an annual payment, I agree with the conclusion at which your Lordships have arrived. The words of the statute are these: "The council

shall make to such authority an annual payment towards the cost of the maintenance and repair, and reasonable improvement connected with the maintenance and repair of such road." There is no suggestion there of that annual payment being estimated upon an average. If the Legislature intended that, it has certainly not expressed it, and I agree with your Lordships in thinking that this expression "annual payment" is intended to indicate the moneys that are laid out for that and not upon an average of years. particular year, In conclusion I have only to say that I hope that this case will not be accepted as a precedent for future cases which may come for the decision of the court submitted by arbitrators under the


Lord DAVEY.-My Lords: I entirely agree with the motion which has been made, and if it were not that we are differing from


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unanimous judgment of the Court Appeal, I should not have felt it necessary to add anything to what has been already said, but I will shortly state the reasons why I differ from the conclusions come to by the Court of Appeal. Two questions seem to have been decided by that court, first, that the footway, which is called the esplanade, was not part of the main road; and, secondly, that there was no liability in the appellants to construct a sea wall for the protection of the road, and therefore that they could not charge the expense of that construction against the respondents. With regard to the first question, we have the express finding of the arbitrator that "the footway or esplanade which intervenes between the sea wall and the carriageway was and is part of the road." That is a question of fact. and the view of the Court of Appeal, as it seems to me, can only be supported either on the ground that under no circumstances could the footway which is called the esplanade be part of the main road, which appears to me to be quite untenable as a general proposition, or that it appears on the face of the case that there was no evidence upon which the arbitrator could properly find that it was part of the main road. The latter point was the point which was pressed upon the House by the learned counsel for the respondents, but when we turn to the findings of fact in the special case it appears to have no foundation whatever. With regard to the sea wall I understand the case to mean that, in the opinion of the arbitrator, it is also part of the road, but whether I am right or not, it is perfectly clear that he considers as a fact that the sea wall was necessary for the protection of the road, and whether it is part of the road, or necessary for the protection of the road, in my opinion the cost of it might equally well be chargeable to the respondents. It has no doubt been decided in the courts that where a road has altogether disappeared and is no longer existent, as, for example, where the site of the old road has become part of the bed of the sea, or possibly the bed of a river, there is no liability to replace the road, for the reason which has been mentioned, that an essential allegation or averment in an indictment for non-repair of a road is that "there was and is a road from the point A. to B." and there is therefore no liability on a road authority to make a new road under those circumstances. And it must also be said that there is no liability upon the road authorities, which could be enforced either

by indictment or otherwise, to do any particular work. Their liability, either at common law or by statute, is general, to repair and maintain the highway, leaving it to them to find out the best, or at any rate adequate, means of discharging that liability. But no such question is raised here. The question here is whether the construction of the sea-wall and the groynes (which seem to me to stand in the same position) was a reasonable way of performing the duty imposed by statute on the district council of maintaining the road in a proper state of repair. The site of this road is exposed to inroads from the sea and it appears from the statements in the special case that the experience of some years past has shown that the sea, unless it is kept out by adequate works, will break over the road and cut it up, and render it temporarily impassable, or reduce it to a state in which it requires continuous and constantly

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recurring repairs. I agree that it would be contrary to common sense to say that it would not be a reasonable and economic mode of keeping the road in repair-and, indeed, one might almost say the only way of maintaining and keeping the road in repair-to construct a work which would protect the road from damage arising from the inroads of the sea. At any rate, it appears to me to be purely a question of fact. The arbitrator finds that it was necessary for the protection of the road, and we are bound by his statement of facts. On these grounds I feel bound to say that the decision of the Court of Appeal cannot be supported, and that the judg ment of the Queen's Bench Division ought to be restored. With regard to the construction of the Act as to the annual payment I have nothing to add to what has already fallen from your Lordships.

Lord LUDLOW.-My Lords: I venture to say, with great respect for the court below, that I think that this award, when fairly and fully considered, has been somewhat too severely, and somewhat undeservedly found fault with in the court below. I presume that awards are not to be examined with a homeopathic minuteness, but ought to be read with a willing mind, and I think that if this award is so read, it is not very difficult to understand what was in the mind of the arbitrator. I consider that this case is entirely concluded by the findings of fact, which cannot be disturbed and cannot be reviewed. I am, therefore, unable to agree with the judgment of the Court of Appeal, and I think that Cave, J. was perfectly right when he said that the award ought to stand. I have only one more observation to make, and that is with regard to the words "annual payment." It was contended before us that "annual payment" had reference to an amount to be arrived at over a series of years. I cannot adopt that view. I think that what was meant was this: A payment to be made annually in respect of the expenditure to be ascertained in the particular year. Probably the idea which the legislators had in their minds was this, that by so enacting any difficulty with regard to the rate that might be made being retrospective would be avoided. I entirely agree with the motion that has been made.

Judgment appealed from reversed, the respondents to pay to the appellants the costs in this House and in the Queen's Bench Division, each party to pay their own costs in the Court of Appeal. (a) Solicitors for the appellants, White, Borrett, and Co., for Messrs. Brockman, Folkestone.

Solicitors for the respondents, Prior, Church, and Adams, for Warner and Turner, Maidstone.

(a) This was understood to be on the ground that there were cross appeals to the Court of Appeal, both of which, in the view of the House of Lords ought to have been dismissed.

Nov. 25 and 28, 1898.

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Tolls-Prescriptive right-Extinguishment of old franchise by statute.

A municipal corporation had, up to the year 1734, a prescriptive right to take certain customary tolls for the passage over a bridge belonging to them. In 1734 they obtained an Act of Parliament which recited their right to take the customary tolls, and enumerated them, and provided that the said customary tolls should "be and remain vested in the said " mayor and corporation. In 1819 another Act was passed which repealed the Act of 1734, and made some altera tions in the scale of tolls. The Act of 1819 was a temporary Act, and its provisions were allowed to lapse. The corporation claimed a right to continue to take the prescriptive tolls. Held (affirming the judgment of the court below), that the prescriptive right to take tolls was, on the passing of the Act of 1734, merged in and extinguished by the statutory right, and could not be revived on the cessation of the statutory right.

THIS was an appeal from a judgment of the Court of Appeal (Smith, Rigby, and Collins, L.JJ.), reported in 77 L. T. Rep. 585; and (1898) 1 Q. B. 186, who had reversed a decision of Lord Russell, C.J., in an action tried before him without a jury.

The question was, whether the appellants were entitled to levy certain tolls for passage over Windsor Bridge, and the respondent sued the appellants for one such toll paid by him under protest and also on a claim for a declaration as to the right to the toll and for an injunction.

Windsor Bridge was a bridge built under a statute passed in 1819 over the Thames, and afforded a means of communication between the counties of Berks and Bucks. It was wholly within the borough of New Windsor. The roads on both sides of the river Thames leading to Windsor Bridge were public highways, and were repaired by the highway authorities.

The appellants asserted, and the Lord Chief Justice found, that the corporation had, prior to 1734, a prescriptive right to certain tolls, the amounts and nature whereof are set forth in the preamble to the Act of 9 Geo. 2, c. xv, hereinafter mentioned. In the ninth year of the reign of George 2 the corporation applied to Parliament for and obtained an Act (c. xv.), the material provisions of which are as follows:

Whereas the mayor, bailiffs, and burgesses of the borough of New Windsor, in the county of Berks, are lawfully seized of the great bridge over the river of Thames, commonly called or known by the name of Windsor Bridge, set, lying, and being in New Windsor aforesaid, and of the way thereon, leading from New Windsor aforesaid to Eton, in the county of Bucks, with the appurtenances thereof, and are obliged, by reason of their tenure, to repair and maintain the same, and for that purpose, by themselves, their officers, deputies, or assigns, have received, and are entitled to receive, certain (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.

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customary tolls for pontage and passage over and under the said bridge; that is to say:

After the

The tolls were then enumerated. recital of a lease of the bridge to one J. Herring the Act provided that the customary tolls

Shall be and remain vested in the said mayor, bailiffs, and burgesses, and their successors, who shall stand for ever chargeable for the repairing, maintaining, and new making of the said bridge and way when and as often as need shall require.

From the passing of this Act of 9 Geo. 2, until 1819 the corporation and its lessees levied the tolls under and in accordance with this Act. In the year 1819 the ancient bridge had become ruinous, and the corporation required funds if a new bridge was to be provided. It accordingly applied to Parliament, and obtained the Act of 59 Geo. 3, c. cxxvi, This Act provided for the demolition of the old and the building of a new bridge and enacted

That when and as soon as the said bridge shall be taken down or rendered impassable the said recited Act (the Act of Geo. 2) shall be and the same is hereby repealed, and it shall and may be lawful to and for the said mayor, bailiffs, and burgesses of the borough of New Windsor aforesaid for the time being or the major part of them to build a new bridge:


In manner and of materials specified in the Act. Power was given to erect turnpikes and toll-gates, and the tolls chargeable were enumerated. It was also provided:

That nothing in this Act contained shall prejudice the rights, or tend to be construed to defeat or abridge the mayor, bailiffs, and burgesses of the borough of New Windsor aforesaid of the powers granted to them by their charters, but that the said corporation shall contine to hold and enjoy such rights, privileges, benefits, and advantages as are granted to them in and by their said charters, or to which they are entitled by prescription or otherwise, in as full, ample, and beneficial a manner, to all intents and purposes, as they did before the passing of this Act, or could or might have done in case this Act had not been made; anything in this Act contained to the contrary notwithstanding.

A bridge was built and erected under the Act of 1819, the money being raised in accordance with its provisions, and the tolls authorised by the Act of 1819, which were not the same as the tolls under the earlier Act, were levied subject to its terms.

In 1842, when the Act of 1819 expired, the debt contracted under the Act had not been discharged, and accordingly the corporation applied for and obtained another Act-5 Vict. c. viii.which was to continue to be in force for the space of thirty-one years, and from thence to the end of the then next Session of Parliament.

The Act of 1842 expired on the 6th Aug. 1874, and the corporation did not apply for any fresh statutory powers, and the money raised for building the bridge had been repaid. The corporation then claimed a revival of the right to the prescriptive tolls mentioned in the preamble to the Act of Geo. 2.

In Jan. 1896 the respondent gave the appel. lants notice that he disputed the right to toll and intended to proceed to raise the question of right, and on the 3rd Feb. 1896 commenced this action.

Crackanthorpe, Q.C., Sir E. Clarke, Q.C., Courthope Munroe, and J. R. Atkin appeared for the appellants, and contended that the Act of 1734

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was only intended to confirm the prescriptive tolls. and the affirmation of a right does not destroy it : (Co. Litt. 115a). Before the Act the only remedy which the corporation had against a person who did not pay was by action in each case, and the Act was intended to enlarge their remedy by giving a power of distress, not to abolish their prescriptive rights. The words exempting freemen were intended to exempt freemen, who were a well-known class of persons in the borough easily identified, from liability to the summary remedy by distress. The other side rely on Corporation of Manchester v Lyons (47 L. T. Rep. 677; 22 Ch. Div. 287) and Corporation of Manchester v. Peverley (reported in a note to the former case in 22 Ch. Div.), but they are distinguishable. Collins, L.J. relied on the opinion of Littledale, J., in the Islington Market Bill (3 Cl. & Fin. 513), but he pushed it too far. Up to 1819 the corporation took tolls by their prescriptive right confirmed by the Act of 1734. The Act of 1819 imposed temporary tolls for a temporary purpose, till the loan incurred for rebuilding the bridge was paid off, but did not affect the old rights of the corporation. doubt if the Act of 1734 abolished the prescriptive tolls, the Act of 1819 did not revive them; but we say that the former Act had not that effect. The corporation have always repaired the bridge, but if the tolls are abolished by whom will it be repaired? It is not a county bridge.


Witt, Q.C and Danckwerts, who appeared for the respondents, were not called upon to address their Lordships.

At the conclusion of the arguments for the appellants, their Lordships gave judgment as follows:

The LORD CHANCELLOR (The Earl of Halsbury).—My Lords: There are one or two points in this case which may depend on subsequent investigation and decision, but there is one point which, to my mind, is perfectly conclusive, and as it appears to me, is the only point for your lordships to decide-I mean the effect of the Act of 9 Geo. 2 upon the existing franchise, and the consequent decision that must follow upon the effect of that statute. I am the more desirous of confining what I have to say to the effect of that statute, and the consequences following upon the repeal of that statute, becase I cannot help feeling that this point could not have been so prominently before the mind of the Lord Chief Justice as other points which were urged, for I think that there is some confusion on account of some slip of the tongue between 59 Geo. 3 and 9 Geo. 2. The Lord Chief Justice does not seem to have had his mind directed to the question of what was the real effect of the statute of the 9th Geo. 2 aud to the effect of its subsequent repeal. To my mind the question is one which is dissociated from the other question with which it has been somewhat clouded, I think. The matter is a comparatively simple one. By prescription the appellants had the right to take certain tolls. They had that by prescription, and the right of a tenant under the lord of a franchise to do certain things cannot be contested; but the lord of the franchise has also certain rights in respect of the person who is under obligation to him, and he may in some cases, if there had been mise nduct, have the power to forfeit, and that

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is a


co-ordinate right, and a right which__in early times was not unfrequently exercised. But the moment 9 Geo. 2 was passed that right was gone, and the question does not depend upon the mere identity of the sums to be exacted from the public. If there had not been a single change in any part of the things that were to be done or powers to be exercised, the right itself, the nature of the right, the root of the title, the right under which a person invested with that right could use the right against the general public-the nature of it was gone as originally granted, and it was clothed with a new Parliamentary authority; in fact, they were acting under a statute, so that if if there had been any misconduct by the user of the franchise, as it was then inaccurately called, the lord of the franchise would have no rights. The person possessed of what was the new Parlia mentary right might bid defiance to the lord of franchise. It is, however, clear to my mind beyond question that the nature of the right itself is completely altered by turning it into a statutory right, and that the right must continue if it does continue by virtue of the statute without any power of revival or reverting back to its original nature. If that proposition is true-and by the Vice-Chancellor of the Duchy and by Jessel, M.R. I think that the true view has been pointed out with very great clearness in Corporation of Manchester v. Lyons ubi sup.); if that is a true view it is hopeless to contend that the original franchise of these appellants has continued by reason of the statute, which gave them the new right, being repealed. On the contrary, the effect of that is that all their right is gone. I desire to place my judgment upon that ground and upon that ground alone. I think it might be very well argued with reference to the later statutes, if they were temporary in their character-which I observe that the Lord Chief Justice assumes to have been the case-if the other statutes which are temporary in their character had still remained, although I do not profess to decide that, as it is not necessary, I should have thought it was very open. In any future case it will certainly be open to argument that where a merely temporary statute has superseded an ancient franchise, and nothing is altered but the temporary character of it, whether the mere fact of giving increased tolls for a short period with a reference to Parliament as to what they may do in the next Session following the expiration of the statute, does not point to an intention by the Legislature that until some new application has been made to Parliament, and subject to that application to Parliament, the ancient dues are intended to be absolutely got rid of. I say I do not decide that at present: it is not necessary to decide it, because the effect of the repeal of the 9 Geo. 2, to my mind is conclusive here. But I do not wish it to be understood, so far as I am concerned, that the case is without argument apart from that consideration. On the contrary, the intention of the Legislature in repealing the temporary Act or giving it only a temporary existence for a time and then allowing the next Session of Parliament to elapse in which a new application could have been made, is quite open to argument-whether that does not mean that the Legislature intended, in fact, that these rights, whatsoever they are, should be discontinued unless renewed by Parliament, and unless renewed by Parliament they were

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intended to absolutely disappear. That is an argument which I think may well be considered in any future case. At present, as I have said, it appears to me to be sufficient to decide the one proposition that the right to take tolls rested entirely on the 9 Geo. 2, and that from the time when that Act was repealed, except so far as the right to take the tolls was continued by temporary Acts, the franchise is gone and all the tolls they were entitled to have gone. It appears to me that all power of taking any tolls of any kind is gone, and therefore I move your lordships that this appeal be dismissed with


Lord WATSON.-My Lords: I desire to rest my judgment in this appeal entirely upon the view which I take of the effect of the Act 9 Geo. 2, upon the franchise which was previously possessed by the appellants. I do not think it necessary in this case to consider the point, which does not seem to me to arise, how far the Legislature can add provisions to the terms of a franchise leaving the franchise standing alone and unimpaired. They may do so; it is possible; I do not pretend to express any opinion to the contrary, and if the Act of Geo. 2 had merely been an enactment to the effect which was contended for by Mr. Crackanthorpe, it is quite possible that the franchise might have outlived the passing of the statute. But when the substance of the Act is looked into there are a great many considerations which, to my mind, clearly point to this result, that the Legislature did not intend the franchise to subsist and be an available right to the holders, that their intention was to substitute for it a statutory right which was at least equivalent to the franchise and to leave no other rights standing, but to regulate both the rights of the holders of the franchise and the rights and obligations of those who used their bridge. The enacting clause is very plain, to this effect, "That it shall and may be lawful to and for the person or persons appointed, or to be appointed, by the said mayor, bailiffs and burgesses, or their assigns, to collect the said tolls." What are the said tolls? The said tolls which they were accustomed by virtue of their franchise to collect and to take of all persons. And then the statute states the exemption given to freemen, that the freemen are to be exempted, and they are to levy the respective tolls before mentioned, in other words they are to levy the franchise tolls at least. It is out of the question to suggest that having made provision, statutory provision, for the levy of those fanchise tolls for the future under statutory authority that the Legislature intended the mayor, bailiffs and burgesses, to continue to levy the same toll under the franchise. Well, what appears to me to have been effected by that part of the enacting clause of the statute is simply to create what it was quite competent for them to do, a statutory authority in the room and in substitution for the right of franchise which was previously available to the mayor and burgesses. The effect of the substitution of a new statutory authority, for authority derived from franchise, only was, I apprehend, upon the clearest authority, to determine the franchise, to put an end to it; and accordingly I think that matters stood in that position. There was no franchise; there was a perfect right to levy according to the scheme substituted for the franchise. And thereupon the

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